What Is a Source of Law?

The purpose of this chapter is to begin the construction of an account of the general concept of a source of law. Depending on context, sources of law will be understood either as agents authorized to make law or, relatedly, as products (e.g. statutes and judicial decisions) resulting from the law-making activities of those agents. Two other possible conceptions of sources of law will be rejected with the intention of avoiding persistent jurisprudential controversies. It will be argued that determining whether something (agent or product) functions as a source of law in a particular jurisdiction depends on observing how judges in that jurisdiction generally use the putative source in the justification of their decisions. The chapter concludes with a caveat regarding some of the perils involved in taking judicial discourse at face value. To treat something as a source of law is to systematically approach it with a certain normative attitude. One expects to see that attitude manifested in public judicial discourse, but judicial discourse can also mislead if read superficially.